BANKS et al v. NEW YORK POLICE DEPARTMENT et al

Filing 2

OPINION/ORDER that plaintiff Frederick Banks's application to proceed in forma pauperis is granted and the Clerk shall file the complaint without prepayment of the filing fee; that the Clerk shall administratively terminate plaintiff Kenneth Pos ner from this action for failing to submit a separate application to proceed in forma pauperis; Posner may move to join this action or file his own separate action; that the complaint is dismissed without prejudice for failure to state a claim upon w hich relief may be granted pursuant to 28 U.S.C. § 1915(e); within thirty days from the date this Order is entered, plaintiff Banks may move to reopen this case, attaching to any such motion a proposed amended complaint which addresses the deficiencies of the complaint as stated in the Opinion accompanying this Order. Signed by Judge Esther Salas on 3/11/15. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Plaintiffs,
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v.
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NEW YORK POLICE DEPARTMENT, :
et al.,
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Defendants.
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BANKS, et al.,

Civil Action No. 15-654 (ES) (MAH)
OPINION & ORDER

SALAS, DISTRICT JUDGE
Plaintiffs Frederick Banks and Kenneth Posner (“Plaintiffs”) have filed a complaint and
application to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915. (D.E. No. 1).

Where

multiple plaintiffs seek to proceed in forma pauperis, all plaintiffs must establish their inability to
pay the filing fee.

See Baxter v. Atlantic Care Main Pomona Hosp., No. 13-7876, 2015 WL

715012, at *2 n.2 (D.N.J. Feb. 19, 2015) (citing Anderson v. State of California, No. 10-2216,
2010 WL 4316996 (S.D. Cal. Oct. 27, 2010); Darden v. Indymac Bancorp, Inc., No. 09270, 2009
WL 5206637 (E.D. Cal. Dec. 23, 2009)).

Here, Plaintiffs have only submitted a financial

affidavit for Plaintiff Banks, and have made no showing that Plaintiff Posner is unable to pay the
filing fee.

Thus, only Plaintiff Banks is entitled to proceed in forma pauperis.

In addition, because Plaintiffs have requested leave to proceed in forma pauperis, their
allegations must be reviewed in accordance with the directives provided in 28 U.S.C. § 1915(e).
Banks v. New York Police Department, No. 15-54, 2015 WL 545865, at *2 (W.D. Pa. Feb. 10,
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2015).

The statute “requires the federal courts to review complaints filed by persons who are

proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious,
fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant
who is immune from such relief.” Id.; see also 28 U.S.C. § 1915(e)(2)(B). “[A] complaint . . .
is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S.
319, 325 (1989). Thus, under § 1915(e)(2)(B), courts are “authorized to dismiss a claim as
frivolous where ‘it is based on an indisputable meritless legal theory or where the factual
contentions are clearly baseless.’” O’Neal v. Remus, No. 09-14661, 2010 WL 1463011, at *1 (E.D.
Mich. Mar.17, 2010) (quoting Price v. Heyrman, No. 06-632, 2007 WL 188971, at *1 (E.D. Wis.
Jan.22, 2007) (citing Neitzke, 490 U.S. at 327)).
Having thoroughly reviewed Plaintiffs’ complaint, this Court sua sponte dismisses
Plaintiffs’ claims because it lacks arguable basis in law and fact and fails to meet the pleading
requirements of Rule 8(a) of the Federal Rules of Civil Procedure.

Specifically, Plaintiffs’

complaint, fails to include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8. First, Counts 1 and 2 of Plaintiffs’ complaint allege “murder
and manslaughter” for the deaths of Eric Garner and Michael Brown, respectively. As Magistrate
Judge Lenihan wrote with respect to Plaintiffs’ attempts to bring similar claims in federal court in
Pennsylvania, “Plaintiffs lack authority and standing to bring these charges and Plaintiffs’ attempt
to do so is both frivolous and malicious.” Banks v. NYPD, No. 15-54, 2015 WL 545865, at *3
(W.D. Pa. Feb. 10, 2015).

Plaintiffs’ remaining claims, Counts 4 and 5, allege various

conspiracies to violate Plaintiffs’ constitutional rights; however, even construing Plaintiffs’
complaint liberally, they do not constitute a viable cause of action. (Compl. at 2-5). The Court,
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therefore, will dismiss Plaintiffs’ Complaint for failure to adhere to Rule 8’s pleading
requirements.
To the extent that Plaintiffs decide to re-plead their claims, they are hereby advised that
each count of a properly pled complaint must contain: (a) its own cause of action against a clearly
identified defendant(s), and (b) those particular factual allegations that would allow the court to
draw the reasonable inference that said defendant(s) is liable for that particular cause of action.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see, e.g., Anderson v. District Bd. of Trustees of
Cent. Florida Cmty. College, 77 F.3d 364, 366 (11th Cir. 1996) (“Anderson’s complaint is a
perfect example of ‘shotgun’ pleading in that it is virtually impossible to know which allegations
of fact are intended to support which claim(s) for relief.”). Plaintiffs must also allege facts
showing the defendant’s actual personal involvement in each of the alleged wrongs. See, e.g.,
Smart v. Pa. Pub. Util. Comm’n, No. 96-3586, 1996 WL 442618, at *4 (E.D. Pa. Aug. 2, 1996)
(instructing that a complaint “should clearly identify each defendant, the conduct of each defendant
allegedly harming him, and the relief he seeks, setting forth the facts relating to each defendant
and to each claim”); see generally Binsack v. Lackawanna Cnt. Prison, 438 F. App’x 158, 160 (3d
Cir. 2011) (holding that the district court did not abuse its discretion in dismissing complaint for
failure to “provide a short and plain statement of each claim against each defendant”).
Accordingly, it is on this 11th day of March, 2015, hereby
ORDERED that plaintiff Frederick Banks’s application to proceed in forma pauperis is
granted and the Clerk shall file the complaint without prepayment of the filing fee; and it is
further
ORDERED that the Clerk shall administratively terminate plaintiff Kenneth Posner from
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this action for failing to submit a separate application to proceed in forma pauperis; Posner may
move to join this action or file his own separate action; and it is further
ORDERED that the complaint is dismissed without prejudice for failure to state a claim
upon which relief may be granted pursuant to 28 U.S.C. § 1915(e); within thirty days from the
date this Order is entered, plaintiff Banks may move to reopen this case, attaching to any such
motion a proposed amended complaint which addresses the deficiencies of the complaint as
stated in the Opinion accompanying this Order; and it is further
ORDERED that the Clerk shall serve a copy of the Opinion and Order filed herewith and
upon plaintiffs by regular U.S. Mail; and it is further
ORDERED that the Clerk mark this case as closed.
SO ORDERED.

/s Esther Salas
Esther Salas, U.S.D.J.

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